du Bois on Constitutional Rights & Balancing

Modern constitutional law provides not only for the 'intrinsic' limitation of one fundamental right by another, but also authorizes ‘extrinsic’ limitations. These permit the limitation of fundamental rights on grounds that do not directly appeal to other entrenched rights but rely on general governmental goals, such as economic development, environmental protection, the promotion of public health and effective policing. But is this genuinely consistent with the nature of rights? Or does it go too far to permit extrinsic as well as intrinsic limitations? Do these not take away with one hand what charters of rights purport to give with the other?

This paper engages with these questions through a critical assessment of Jurgen Habermas' rejection of Robert Alexy's account of the balancing of constitutional rights via a proportionality test. Situating this debate in the context of South Africa's post-apartheid Constitution, the paper takes as its starting point Ronald Dworkin's theory of rights, which constitutes an important point of reference for both Habermas and Alexy. Dworkin's idea that rights are intrinsically linked to equality of concern and respect is explained and, ultimately, rejected. This opens the door to the development of a different and, it is argued, more convincing account of how rights trump, one that is capable of supporting the limitation of rights by way of a balancing process.